Obama Embraces Signing Statements After Knocking Bush for Using Them

Obama’s embraced a tactic he criticized Bush for using to ignore elements of laws passed by Congress.

01.04.12 6:58 PM ET

As a candidate in 2008, Barack Obama promised that if he was elected president he would not issue obscure declarations known as signing statements that thwart the intent of laws passed by Congress. But as the president now seeking reelection in 2012, on at least 20 occasions Obama has embraced the same tactic he criticized George W. Bush for using, raising allegations of double-dealing in Congress and questions of constitutionality from the American Bar Association.

Obama’s most recent signing statement came on New Year’s Eve, when he autographed a 13-paragraph memorandum declaring he did not intend to follow several sections of the National Defense Authorization Act that funded the military for 2012. The president said his lawyers had concluded the provisions interfered with his constitutional duties to carry out foreign policy.

The signing statement essentially declares Obama’s intention to ignore requirements in the law, including restrictions on data transfers to Russia, new authorities to detain suspected members of al Qaeda, and sanctions against the central bank of Iran. The move has alienated members of Congress who claim the White House reneged on promises it made during backroom negotiations to get the long-stalled legislation passed just before lawmakers left for the holidays.

Sen. Mark Kirk, a Republican from Obama’s home state of Illinois, said in a phone interview Tuesday that the president’s lawyers had broken promises his top national security advisers made to Kirk on not sharing some data from U.S. missile defense systems with Russia. The senator had placed a hold on Obama’s nominee for U.S. ambassador to Moscow until he received assurances that such data would not be shared.

“Whichever administration lawyer wrote this was having the president speak with forked tongue,” Kirk said. “The deputy national security adviser assured me that under no circumstances would sensitive missile defense data like telemetry or hit-to-kill technology go to the Russians. Then his lawyers, with a great lack of integrity, pulled back the very commitments made to me in writing.”

Asked for comment, White House National Security Council spokesman Tommy Vietor said Obama intends to keep his promises to Kirk. “We made clear commitments to Sen. Kirk that we will of course honor,” he said. “Those commitments were spelled out in a letter to him that he has made public. As it relates to the issue of cooperation with Russia on missile defense, the administration, like previous administrations, has viewed missile defense cooperation with Russia as an important opportunity to increase the effectiveness of our defenses against the nearest term and most likely threats.”

Kirk told The Daily Beast that the missile defense data the administration would share with Russia is likely to end up in the hands of Iran, whose missiles the missile defense system is meant to defend against. “When we give classified information to the Russians, we ignore the reality that almost immediately this technology will go to the Islamic Republic of Iran, probably through their senior missile defense ambassador, Dmitry Rogozin, who is scheduled to work there with Iranian officials in Tehran this month,” he said.

Vietor said the Obama administration has “kept Congress well informed of our missile defense plans, including discussions with Russia, and we will continue to consult closely with Congress.” He added, “We will not provide Russia with sensitive information about our missile defenses that would in any way compromise national security.”

In the Dec. 31 signing statement, Obama says the section of the defense authorization bill that requires the president to notify Congress 60 days prior to any decision to share the missile defense data “could interfere with my constitutional foreign affairs powers.” Obama also says the section of the bill instructing the United States to sanction any banks that do business with Iran’s central bank, a provision championed by Kirk, also would interfere with the president’s ability to make foreign policy.

The assertion by Obama does follow a long-standing tradition for Democratic and Republican presidents. President Monroe was the first to issue a signing statement, and the practice later became more widespread during the Reagan administration. Although Obama has issued 20 signing statements, President George W. Bush had issued 87 such statements by the fourth year of his first term.

“Presidents have long used signing statements to signal concerns about legislation, and in particular, with respect to provisions he believes inappropriately encroach on his duties as commander in chief,” said Mark Paoletta, a former assistant counsel to President George H.W. Bush.

“However, during the 2008 campaign, Obama trashed President Bush 43 for using signing statements but now seems to be using them vigorously to object to many provisions of laws,” he added.

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At a campaign stop in Grand Junction, Colo., in May 2008, Obama responded to a question from the audience by promising not use the signing statements. Drawing a contrast with President George W. Bush, whom Obama characterized as changing “what Congress passed by attaching a letter saying ‘I don’t agree with this part’ or ‘I don’t agree with that part,’” Obama asserted, “Congress’s job is to pass legislation. The president can veto it or he can sign it.”

He later tempered his pledge after entering office, issuing a memorandum in March 2009 saying he would issue the signing statements “to address constitutional concerns only when it is appropriate to do so as a means of discharging my constitutional responsibilities.”

For the American Bar Association, the main lawyers’ lobby, Obama’s use of the tactic is as problematic as that of the presidents before him.

“The Constitution gives the president the power of veto, and if the president is not going to abide by a part of any given legislation provided by Congress, then he needs to veto that legislation and let the Congress decide whether to override that veto,” said Bill Robinson III, the president of the American Bar Association.

Meanwhile, Obama looks as though he will face more immediate political consequences from his signing statement. The amendment creating new sanctions on the central bank of Iran passed the Senate by a vote of 100 to 0, despite opposition from the White House.

The White House also may have burned up the last amount of goodwill it had from the junior Republican senator from Illinois. In the interview, Kirk said he was not likely to look kindly on cooperating with the White House going forward. “The administration needs many things on the national security front from me,” he said. “They may not have a willing partner if this is what they do.”